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Private-Sector Comp-Time Bill Advances

The U.S. House Committee on Education and the Workforce, chaired by Rep. John Kline, R-Minn., approved legislation April 17, 2013, that supporters say will help Americans balance family and work.

As proposed by Rep. Martha Roby, R-Ala., the Working Families Flexibility Act of 2013 (H.R. 1406) would amend the Fair Labor Standards Act of 1938 by allowing private-sector employers to offer employees the option of taking comp time in lieu of overtime pay.

Kline thanked Roby for her work on the legislation and said the bill’s approval was “an important step toward providing workers the flexibility they need to better balance the needs of family and work.”

Society for Human Resource Management (SHRM) member Juanita Phillips, director of HR at Intuitive Research and Technology Corp., spoke in favor of the bill during an April 11 appearance before the House Subcommittee on Workforce Protections.

Government workers have had this option for 35 years and it should be available to private-sector employers, said Phillips, one of four people offering comments on the proposed legislation during the subcommittee hearing.

She told subcommittee members that her employer is a federal government contractor with nonexempt employees working side-by-side with federal government nonexempt employees.

“It is incredibly difficult to explain to my employees why they cannot take comp time, while the government employees they work alongside can.”

“[This proposed bill] gives employees more control over their time,” she said, adding that it “would give employers the option … and employees the choice of whether to participate in a comp-time arrangement.”

H.R. 1406 would give employees the choice to elect paid time office in lieu of payments for overtime hours worked.Employees could then decide when to use comp time as long as the time off would not unduly disrupt the business, much like when requesting vacation time.

The bill includes protections to ensure that use of comp time is the employee’s choice, such as requiring a written agreement between the employer and employee that gives employees the option to withdraw from the comp time agreement at any time, and allowing the employee to cash out accrued comp time and receive overtime pay within 30 days.The bill does not alter the 40-hour workweek or change the way overtime pay is calculated (one and one-half hours pay for each hour worked over 40 in a week).

Employers who insist employees choose comp time would be liable to the employees for double damages.

SHRM supports the bill, seeing it as an example of voluntary adoption of workplace flexibility programs such as telecommuting, job sharing and compressed work schedules.

However, Judith Lichtman, senior advisor at the National Partnership for Women and Families (NPWF), was vehement in her opposition, calling the bill “nothing more than a mirage.” Her written remarks included a half-dozen concerns the NPWF has with the bill.

It “pretends to offer the time off people need when they need it but instead it is a pay cut for workers without any attendant guarantee of time.”

She offered the example of a mother who asks to take comp time to stay home with her sick toddler. The woman has no guarantee under this bill that she’ll be able to take the time she’s earned and banked when she wants it, Lichtman said in written comments.

She also argued that it undermines the 75-year-old Fair Labor Standards Act, which requires hourly nonexempt employees to be paid time-and-a-half for every hour worked beyond 40 hours per week.

“There’s nothing illegal with [employers] giving employees time off. Existing law permits employers to do that,” she said, pointing to the FLSA. “Instead, we should adopt national polices [with] a proven record,” and support legislation such as the Healthy Families Act, most recently introduced in the House and the Senate in late March. It would require certain employers to allow workers to earn an hour of paid time off for every 30 hours worked.

Subcommittee member Rep. Joe Courtney, D-Conn., also spoke out against the legislation and noted similar legislation has been introduced multiple times—without success—in identical form since the late 1990s.

“This bill has nothing to do with promoting workplace flexibility,” he said in written remarks.

“It is about not paying overtime. It is about saying to hourly workers already struggling to make ends meet: if you need time off to care for a sick child or attend a school concert, you need to work extra hours, forgo the earned overtime pay, and then, as long as it is not disruptive to your employer, you may get some time off. But, to be clear, nothing in this bill requires that the worker has access to time off when she really needs it.”